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State v Chand [2016] FJMC 217; Criminal Case 638.2012 (26 October 2016)

IN THE MAGISTRATE'S COURT
AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS

HAC 436 of 2012

Criminal Case No: 638/12

State

.V.

Nirbhay Chand

Rajneel Chand

Nicklesh Chand

Chandrika Prasad

Prosecution : Ms Serukai for DPP

Accused : Present - Represented by Legal Aid

Sentence

___________________________________________________

Introduction

All the accused persons were charged with act with intent to cause grievous harm contrary to Section 255 (a) of the Crimes Decree. The High Court extended the jurisdiction of this Court to deal with the matter. The accused persons were found guilty following a hearing.

Act with intent to cause grievous harm, contrary to Section 255 (a) of Crimes Decree Number 44 of 2009.

Particulars of offence (b)

Nirbhay Chand, Rajneel Chand, Nicklesh Chand and Chandrika Prasad on the 9^th day of October, 2012, at Waituri Irrigation Road, Nausori in the Central Division, with intent to do some grievous harm to Prakash Gautam unlawfully hit the said Prakash Gautam with sticks and timber.

The Law and the Tariff
The maximum penalty for this offence is life imprisonment.

In State v Chand (2011) FJHC 19 HAC 07 of 2011 (17 January 2011) His Lordship Justice Madigan stated:

"The maximum penalty for the offence of act with intent to cause grievorm is imprismprisonment for life. This is an offence relatively new to the jurisdiction, introduced by the Crimes Decree 2009 on February 1st of 2010. Until a body of sentencing authorities isred, it is helpful to rely rely on the analogous section 224 of the old Penal Code, the offence of an act intended to cause grievous harm. It was established in Viliame Cavubati – HAA 80 of 2010 by Shameem J. that the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. This Court said in Amasi Korovata – HAC 11 of 2009 that the range now should extend up to 4 to 5 years."

Mitigation

Nirbhay Chand – 52 years old, divorced, residing with son a co-accused, unemployed, no previous conviction, sickly, seeking forgiveness, not planned, acted spontaneously and in heat of moment, seeking leniency, seeks a second chance and will not re-offend.

Rajneel Chand – 29 years old, single, residing with father, hairdresser by profession, earning $180/week, no previous conviction, sole breadwinner, looks after elderly father, seeking forgiveness and leniency.

Nicklesh Chand – 38 years old, married with 3 children, not employed, apologizes and expresses remorse for action, 1^st offender.

Chandrika Prasad – 41 years old, married with 3 children, labourer, earning $280/week, actions were a mistake, 1^st offender.

Starting point and Calculation of Sentence

The Court has noted that the accepted tariff for the offence is from a suspended sentence to 5 years imprisonment.

Nirbhay Chand – is the principal offender in the case and you caused most injury to the victim by using the firewood as a weapon. For his role in the offence this court takes a starting point of 30 months imprisonment. For the total mitigation and previous good character this court will give 8 months discount. Your sentence is 22 months imprisonment.

Rajneel Chand – for your role in the commission of the offence this court takes 24 months as starting point for your sentence. For the total mitigation and previous good character this Court gives 8 months discount. Your sentence is 16 months imprisonment.

Nicklesh Chand – for your role in the commission of the offence this court takes 24 months as starting point for your sentence. For the total mitigation and previous good character this Court gives 8 months discount. Your sentence is 16 months imprisonment.

Chandrika Prasad – for your role in the commission of the offence this court takes 24 months as starting point for your sentence. For the total mitigation and previous good character this Court gives 8 months discount. Your sentence is 16 months imprisonment.

Decision whether to suspend your sentence or not

This Court has the discretion to suspend an imprisonment sentence which does not exceed 2 years according to Section 26 of the Sentencing Penalties Decree 2009. The calculation of the sentence so far by the Court is less than 2 years for each of the accused persons. The oft cited provisions relating to the principles to be considered is the New Zealand Court of Appeal case R v Peterson (1994) 2 NZLR 533 where it outlined the principles of suspended sentence as:

"...the courts first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it. Factors should be considered were clearly mentioned in that case. The factors when it comes to the offender as the age, previous good record, long period of free of criminal activity, and as to the circumstances of the particular case diminished culpability arising through lack of pre meditation, the presence of provocation and cooperation with the authorities all those factors are applicable to the present case."

This Court has noted the ages of each of the accused persons; they cannot be counted as young offenders. However each one of them is a first offender. The circumstances of the offending related to an affair between the former wife of the 1^st accused, who is also the mother of the 2^nd accused. The 1^st and 2^nd accused resided on the same property with the former wife of the 1^st accused. The victim visited the former wife of the 1^st accused. The offending arose during one of those subsequent visits. From the facts of the case and the hearing this Court notes that the charges result from actions that were on the spur of the moment and were not premeditated. The actions of the accused persons while they were wrong clearly were in response to actions of the victim and the former wife of the 1^st accused who met in their presence in the same household which was shared by the former wife and the 1^st accused. This virtually amounted to provocation on the part of the victim.

The Court has noted the role of each accused persons. For the foregoing reasons the court thinks that the sentence of each of the accused person should be suspended for 2 years. The meaning and consequences of breach suspended term of imprisonment is explained to each accused in open court.

Summary of sentence

Nirbhay Chand – 22 months/ suspended for 2 years

Rajneel Chand – 16 months /suspended for 2 years

Nicklesh Chand – 16 months/Suspended for 2 years

Chandrika Prasad – 16 months/Suspended for 2 years

Right to any aggrieved party to appeal this sentence within 28 days.

Chaitanya Lakshman

Resident Magistrate

26^th October 2016